Court Curbs Juror Challenges

Ruling Aimed At Exclusion Of Minorities

SPRINGFIELD — Trial attorneys will have fewer opportunities to dismiss jurors without giving a reason under a new rule announced Wednesday by the Illinois Supreme Court.

Though the court gave no reason for its action, the move in effect implemented a reform long sought by some defense lawyers who contended that Illinois allowed an excessive number of ``peremptory challenges,`` resulting in the exclusion of blacks from juries in criminal cases involving black defendants.

The action also brings Illinois closer to American Bar Associaton recommendations on the number of peremptory challenges.

The reduction in the number of peremptory challenges, which the high court had urged the Illinois General Assembly to undertake last year, came in a change in the Supreme Court`s rules.

The issue of race-based jury selection is national in scope. But five times in recent years the U.S. Supreme Court has rejected claims that blacks have been excluded from juries because of race.

``Appropriately used, peremptory challenges have a very proper place in judicial proceedings,`` said Steven Clark, deputy defender in the State Appellate Defender`s Office in Chicago. ``It is unfortunate, though, that a reasonably valid tool is being curtailed to try to solve what I believe is a serious problem in the exclusion of blacks from juries.``

Clark and other attorneys said that while more blacks might be selected to serve on the juries because of the new rule, the policy also may hinder their efforts to select panels which are not biased in favor of the death penalty, for example, and impair their defendants` rights to a fair trial.

Peremptory challenges were reduced from 20 to 14 in death penalty cases under the new rule. In noncapital cases, the number of exclusions without cause would be decreased from 10 to 7. In cases where two or more defendants are being tried jointly, the number of peremptory challenges will be reduced from 12 to 8 in capital cases and from 6 to 5 in noncapital cases.

The ABA has recommended uniform laws limiting each side to 10 challenges in death penalty cases and 5 in other felonies.

Federal and state courts consistently have rejected arguments that a defendant was prejudiced because of race-based jury selection. Courts have held that without a showing of systematic exclusion of a particular race that the burden of proving discrimination was not met.

Last year, however, then Chief Supreme Court Justice Howard C. Ryan, in the court`s annual report to the General Assembly, said the legislature should consider reducing the maximum number of peremptory challenges as a possible way of preventing such exclusions.

A Tribune inquiry last year found that Cook County prosecutors eliminated blacks at more than twice the rate that they excluded whites in picking juries for trials of black defendants. In 31 trials monitored by The Tribune in July, 1984, prosecutors used 68 percent of their peremptory challenges to remove blacks, despite the fact that blacks made up only 29 percent of the potential jurors.

Justice Seymour Simon dissented from the court`s majority in approving the rule change, arguing that he did not believe the new rule ``is the proper remedy for what I perceive to be an existing, serious and evil practice.``

``. . . I recommend that this court attack this pattern of abuse head-on instead of circuitously,`` Simon wrote. ``We should do it by forbidding the use of peremptory challenges based on race and leave to the General Assembly its traditional role in setting the number of legitimate peremptory challenges permitted in criminal cases.``

Three bills dealing with peremptory challenges have been introduced this year in the legislature. Two of them would require clerks to keep records of the sex and race of jurors removed by peremptory challenges. The other would require prosecutors to state their reasons for using the challenges if asked by the defendant or if the court believed they were being used solely to exclude persons because of their race.

Simon also said he found it ``peculiar`` that the court was reducing the number of allowable challenges without cause ``in the guise`` of dealing with racially biased prosecutors and juries.

``This court has consistently denied there is any such problem in Illinois,`` he wrote, citing the People v. Mack ruling last year.

In that decision, Justice Ryan wrote that regardless of the emotional arguments that have been raised, ``there is just no evidence that blacks are systematically and purposefully excluded from serving on juries in Cook County where the defendants are black.`` In Mack, the court also cited The Tribune inquiry, saying it was ``interesting, but not authoritative.``

In his dissent, Simon also warned that cutting the number of peremptory challenges could result in juries which would be less likely to give defendants fair trials.

``Curtailing the number of peremptory challenges available to a defendant in a capital case decreases the defendant`s opportunity to exclude prospective jurors who demonstrate unusual zeal in favor of the death sentence, and thus could diminish the viability of his constitutional right to trial by jury as required by the Constitution,`` he wrote.

Richard Kling, a practicing attorney and professor at Chicago Kent College of Law, and Clark agreed that the court`s new rule, which is effective May 1, is not a total solution to alleged racial bias in jury selection.

``In Cook County, 14 challenges is an insufficient number from a defense point of view to assure that my defendant has a fair trial,`` Kling said. ``In noncapital cases, it has a similar effect, although not on the same scale. To have only seven peremptory challenges in a felony case where a defendant can receive a sentence of up to 80 years in the penitentiary, I think is ridiculous.``